Will Bolton Testify at the Impeachment Trial?

Bloomberg Law. With June Grasso from Bloomberg Radio. Welcon to Bloomberg Law. I'm June Grosso. The impeachment drama will shift to the Senate this week. My guests former Federal Prosecutor Robert Mentz, a partner at McCarter in English. So, Bob, did the delay help the Democrats cause in any way? I think the answer to that question is very much

in the ivy beholder. For the Democrats, what they were trying to do was to move the needle in terms of public opinion, to try to bring more support for these articles of impeachment and try to sway perhaps a number of Republicans to come over and support their call for witnesses. So far, it doesn't seem like that has succeeded.

Mick McConnell is taking the view that witnesses will be decided after both the House managers present their case and the president's lawyers have an opportunity to present their defense, they'll take up the question of witnesses at that time. That's not something the Democrats are happy with, but ultimately I think it is something they're going to have to live with. Pelosi criticized Senate Majority Leader Mitch McConnell for supporting a resolution to dismiss the articles unless they were

sent over soon. Now did McConnell just out maneuver Pelosi or does he just have the leverage. It's something that she can fight well. Ultimately, he was never a question of if. It was always a question of when Nancy Pelosi would be sending over these articles of impeachment, and Mick McConnell knew that she had to ultimately turn these articles over to the Senate so that his trial could proceed.

She was trying to delay as long as possible to try to leverage what she could out of Republicans, but I think she knew that it was unlikely to sway votes at this time. I think her ultimate goal really was to try to focus public opinion on this whole perception as to whether or not this trial was a real trial, was a fair trial, and whether or not Republicans could credibly call this a true impeachment trial at the same time taking a position that they don't need

to hear from any witnesses. President Trump's tweets this weekend range from calling for a trial with Pelosi and Intelligence Committee Chairman Adam Schiff being called as witnesses, to suggesting that Senator should dismiss the House charges outright. Could the Senate dismiss them out right? I think as a procedural matter, the Senate could dismiss them out right. But remember here that both sides are really playing to public opinion, They're

really playing to their bases. So a lot of things are being said no wing that they're unlikely to happen.

I think Mitch McConnell knows that it would be ill advised to simply dismiss these articles of impeachment without any kind of process at all, because he does have at least four Republican senators who are somewhat on the fence on the question of witnesses, and they we're trying to come up with some kind of compromise so that witnesses can be called and there can be some process here that in some way replicates the process that was followed

during the Clinton I teachment. President Trump has already said that if former national security advisor John Bolton is called that there will be questions of executive privilege. To me, for the future, we have to protect presidential privilege. When we start allowing national security advisors to just go up and say whatever they want to say, we can't do that.

How strong an argument do they have for executive privilege? Well, the real question about John bolton testimony is, first, willy testify on Second, if he does testify, what exactly will he be permitted to say? Executive privilege does cover president's deliberations with his national security advisor on issues of foreign policy. So there is a credible argument that some of these conversations that John Bolton had with the President would be

protected by executive privilege. And that's a privilege that belongs to the president, not the John Bolton. So if they go into that area, if John Bolton is called to testify and questions are asked about some of those deliberations with the President. I think we can't expect to see the White House exercising that right for executive privilege, and that would have to then go to the courts to

be decided. I think what would ultimately happen is that they would try to work around the privilege issue and see whether Bolton could provide testimony that wasn't covered by the privilege so that the trials could continue, because going to the courts would only further delay this trial, drag it out into the Iowa caucuses and other things having to do with the Democratic primaries right now, and that's

what the Democrats are hoping to do. Does it matter that some of what they'd be asking Bolton was testified to already by witnesses at the House impeachment trial. Well, certainly if other people were present during the conversations that Bolton had with the President, and that testimony has already been elicited, there's an argument that has been waived that executive privilege would have had to have been raised while

those witnesses testified about those conversations. But the key to the John Bolton testimony is, according to John Bolton's lawyer. He has some relevant and material and important information which has not been elicited by the House Intelligence Committee through those other witnesses, and that is an instance where the privilege may apply if it was a conversation that took place solely between John Bolton and the President. Coming off on Bloomberg Law, how long will the Senate trial chake

and will there be witnesses? I'm June Grosso and this is Bloomberg. You're listening to bloom Law with June Grozzo from Bloomberg Radio. President Trump Senate impeachment trial will begin as soon as this week. I've been talking to former federal prosecutor Robert Mint's a partner McCarter and English Bob House Judiciary Chairman Jerry Nadler and Intelligence Chairman Adam Schiff will likely be the top names on the prosecution team

in the Senate impeachment trial. According to Michigan Congressman Dan Kilde, they're both lawyers. Is it important to have lawyers in that position? Well, that's really entirely up to Nancy Pelosi as to who she wants to name as House managers. Typically, they do choose legislators who have prosecutorial experience, because really they are acting as prosecutors. They're going to make out

the case for the articles of impeachment. They're gonna try to persuade the Senate and really the larger audience of the general American public that these articles of impeachment have merit, and their opening statements are something that are going to be watched very closely because there's a possibility that that is all the ammery can public will ultimately hear about these charges. White House Counsel Pat Sipoloni and Trump's personal attorney j Seklo are set to head up the president's

defense team. There's also a question about whether some House Republicans who staunchly advocated for Trump during the impeachment inquiry, such as Ohio Representative Jim Jordan's, should be added to the team. Well, I think ultimately it's up to the President and his team as to who he is going to choose to defend him against these articles of impeachment, and if he believes that there are some House members who can articulate that position, well they may add them

to the legal team. It really is a decision for the president to make and ultimately Mick McConnell will abide by whatever the president's wishes are in that regard. According to CNN, the trial brief for the president likely could be submitted within two days of the House vote to transmit the articles. What does that tell you about what's in the trial brief? Is going to be the arguments

that we've been hearing from House Republicans. I think it's going to be very similar to the arguments that House Republicans have been arguing all along here. I think they're going to stick to the argument that none of this rises to the level of an impeachable offense, that the President did absolutely nothing wrong, and they're probably going to

try to keep this as streamlined as possible. There's been lots of talk about calling Hunter Biden and other witnesses here, but I think both sides recognize that there is an inherent risk in calling witnesses on either side, whether that would be John Bolton or Hunter Biden, because nobody knows exactly what these witnesses are going to say, and prosecutors do not like to call witnesses to the stand in the middle of a trial when they don't know what

the testimony is going to be so. As much as the Democrats want to hear from John Bolton, and it's no question that they want to do that, the fact is that nobody really knows what he would say, and he has a bit of a ticking time bomb. He's an independent person who has a times parted ways with the Trump administration, and we really don't know whether he would be a defense witness or a prosecution witness. Will really have to see if it comes to pass that

he testifies, where what side he's going to come down on. Now. Senator Lindsey Graham, of course, a staunch ally of President Trump, predicted that the trial would be over in a matter of days, not weeks. Is he likely right about that now?

I don't think it's going to be days. I think they're going to have to make at least a credible presentation here of going through the process, allowing the house managers to present their case, however long that takes, allowing the President's lawyers to present their defense, however long that takes, and then at that time, according to Mitch McConnell, they will follow the Clinton model and take up the question of whether or not any additional witnesses will be called

on both sides. It's still a possibility that witnesses will be called. I think one thing Mitch McConnell wants to do is to see how the case goes in, how the prosecution's case went, how the defense went, and then make the call at the end of the day. But I think there is a perception here that Mitch McConnell is trying to on the one hand, expedite this process. On the one hand, remove any potential surprises or kicking time bombs that could explode in the middle of list

trial and change the trajectory of the outcome. But at the same time, there has to be some perception that this is a fair process, that it is a process that was followed similarly in the Clinton impeachment model, and that people believe that this was not a sham, that they gave it its due process, and ultimately the outcome is something that is supported by the evidence that was presented during the trial. It's an odd situation because you'll

have an impeachment trial so close to a reelection campaign. Well, what's important to remember here is that the impeachment process is fundamentally a political process, not a legal process, and it's even more so in this case because this is the first time in American history when there's been an impeachment of a president prior to the re election of a second term. So we've never had a president who

was impeached and then faced re election. And there are lots of people who said that they should just let the election take care of this process and not have gone through this whole impeachment process in the in the

first place. But this is a process that is rife with political implications, and both sides, the Democrats and the Republicans, are making these decisions, both in terms of trying to affect the ultimate outcome of the trial, but also trying to calculate how this process would ultimately impact the elections. You know, you watch TV and you see a lot of clips from the Clinton impeachment trial, and it seems as if senators are advocating exactly opposite things from what

they advocated in the Clinton impeachment trial. For example, Lindsey Graham saying that you need witnesses at a trial and Chuck Schumer saying that you don't need witnesses at a trial. Yeah, there's been lots of clips of Senator Lynda Graham and Senator Chuck Schumer taking the actually opposite positions during the Clinton teachment process. That's not surprising because this is fundamentally a political process, but there are some factual differences here

that do support perhaps exchanged view. In the Clinton teachment trial. You have to remember that there were witnesses called at trial, but every single one of the witnesses called a trial had previously testified before the House Committee. This would be the first time in the history of the country where witnesses would testify during the Senate trial who had never testified before on the House side. So it really is

an unprecedented situation. There's very little precedent, either legally or historically as to how this process will proceed, which is exactly why it is the free for all that it is. Where you have both sides taking positions that seem to be directly contrary to the positions they took during the Clinton teachment process, and ultimately it is the political process

that will store this all out. If politicians on both sides get pressure I have to call witnesses or to simply end this trial, that's where this is going to go. And so forth. What Mr McConnell is trying to do is to keep his Republicans in line. He's got to keep to the four Republicans in line to make sure they don't cross over and agree to call witnesses, because if he does that, he loses control this trial, and

witnesses will then be called. And ultimately, if they call witnesses, I'm going to assume that they're gonna be able to call witnesses on both sides. So we might see John Bolton, we might see Hunter Biden, and if we go down that road, this is going to be a very different impeachment trial than what people are anticipating at this point. Thanks Bob, that's Robert Man's a partner McCarter in English. And that's it for this edition of Bloomberg Law. I'm

June Grosso. Thanks so much for listening, and remember to tune into The Bloomberg Law Show weeknights at ten pm Eastern, seven pm Central, right here on Bloomberg Radio